Aggravated Felonies

(C)  Substantial Risk.  Most cases that have examined whether a conviction involving sex and a minor triggers deportation as an aggravated felony crime of violence have turned on the issue of whether the offense involves a substantial risk that force will be used in the commission of the offense.  In the context of sex offenses involving minors, most courts assume that since a minor is not legally capable of consent, any sex offense automatically involves a substantial risk of force.  See § § 5.26-5.27, supra.

            In finding that a conviction, under an Oklahoma statute punishing any unconsented touching of the private parts of a person between 16 and 18 years old, was an aggravated felony crime of violence, the Fifth Circuit noted that:

Further, “[b]ecause the statute at issue here presupposes a lack of consent, it necessarily carries with it a risk of physical force.” [United States v. Rowland, 357 F.3d 1193, 1197 (10th Cir. 2004).]  By analogy, we believe that the risk that physical force will be used to complete the offense of sexual battery is substantial. See also Sutherland v. Reno, 228 F.3d 171, 176 (2nd Cir. 2000) (indecent assault and battery under Massachusetts law qualified as a crime of violence because “any violation of [the Massachusetts statute], by its nature, presents a substantial risk that force may be used to overcome the victim’s lack of consent and accomplish the indecent touching”) (emphasis in original). In holding that sexual battery through deception under Ohio law is a crime of violence, the Sixth Circuit expressed a similar view, noting that such an offense “carries with it the ever-present possibility that the victim may figure out what’s really going on and decide to resist, in turn requiring the perpetrator to resort to actual physical restraint.” See United States v. Mack, 53 F.3d 126, 128 (6th Cir. 1995). In all such cases, “the non-consent of the victim is the touchstone for determining” whether a given offense involves a substantial risk that physical force may be used in the commission of the offense. Sutherland, 228 F.3d at 177.[670]

Other courts have come to the same conclusion.[671]

            On the other hand, the Seventh and Ninth Circuits have found that the fact that the victim is a minor, and therefore cannot legally consent, does not mean that a 16- or 17-year-old cannot give meaningful actual consent.  In the context of statutory rape cases involving older teens, the Seventh and Ninth Circuits have held that the offense does not necessarily involve a substantial risk of force.  See § 5.76, infra.

[670] Zaidi v. Ashcroft, 374 F.3d 357, 361 (5th Cir. June 21, 2004).

[671] See, e.g., Patel v. Ashcroft, 401 F.3d 400, 410 (6th Cir. Mar. 8, 2005) (“Indeed, it requires no great investigation to determine that the crime for which Patel was convicted criminalizes sexual conduct ‘with a victim who is unable to give consent’ and, consequently, ‘the statute inherently involves a substantial risk that physical force may be used in the course of committing the offense.’”), quoting Chery v. Ashcroft, 347 F.3d 404, 408 (2d Cir. 2003).